An Injured Worker May be Eligible for a U-Visa?

By Nikki Mehrpoo Jacobson
Certified Legal Specialist in Workers’ Compensation Law
by the State Bar of California Board of Legal Specialization

AN INJURED WORKER MAY BE ELIGIBLE FOR LEGAL STATUS (U-VISA) IN THE UNITED STATES AND WCJs MAY HAVE AN INTEGRAL ROLE IN THE PROCESS**

(**Please note that this article is limited to the U Visa. Injured Workers may also be entitled to T Visa benefits)

The issue of “violent acts” and “catastrophic injuries” have been a hot topic of discussion ever since LC 4600.1 came into effect. Essentially, WPI increases are barred for injured workers claiming psych injuries that are compensable consequences of orthopedic injuries. However, if an exception applies, such as a “violent act” or a “catastrophic injury,” the injured worker will be able to obtain an increase in WPI, as well as medical treatment and temporary disability benefits.

Regardless of whether the applicant is eligible for WPI increases or not, what is not as well-known is that undocumented injured workers can file for legal status (U Visa) in the United States as a result of workplace related criminal activity or violence. The crime or violence does not have to be a violation of the penal code but a violation of administrative rules and regulations. This visa was specifically created to benefit victims of criminal activity or violence, including victims injured on the job. Congress has concluded that the U visa “will strengthen the ability of law enforcement agencies to detect, investigate, and prosecute [crimes] committed against aliens, while offering protection to victims of such offense in keeping with the humanitarian interests of the United States.” Pub. L. No. 106-386, Div. B, Title V, § 1513(a)(1)(A)-(B), Oct. 28, 2000, 114 Stat. §1513(a)(2)(A) (emphasis added)

There are situations where an undocumented worker has been violently injured, victim of a crime or sexual harassment at the workplace. Unfortunately, it is common for these injured workers to refuse to file a claim when this happens, for fear they may lose their jobs, or worse, lose their families and be subject to the wrath of immigration agencies and be deported.

It is important for these injured workers to know that they are eligible to pursue benefits in both the workers’ compensation and immigration systems.

An injured worker may be eligible for a U visa by submitting a certification by a certification entity (Judges [civil, criminal, administrative judges], local law enforcement agencies, any other civil, criminal or administrative authority involved with criminal activities or civil/administrative violations, including, Department of Industrial Relations and labor code violations) that verifies that she was a victim of the criminal activity or violence and is willing , or is likely to be helpful in the investigation or prosecution of the crime committed against her. See INA § 101(a)(15)(U)(i)(III), 8 U.S.C. § 1101(a)(15)(U)(i)(III). It is crucial to note that a victim may request and receive certification despite lack of a current investigation, the filing of charges, a prosecution or a conviction.

In addition, by signing the I-918 Supplement B certification, a Workers’ Compensation judge is not granting the injured worker a visa to reside legally in the United States. To the contrary, only U.S. Citizenship and Immigration Services (“USCIS”) is authorized to issue U visas. The I-918 Supplement B certification is submitted with the U visa application and other supporting documentation to CIS for its review and ultimate determination. In addition to the certification, the victim must also satisfy USCIS that she has satisfied the requirement that she was, is, or is likely to be helpful in the investigation or prosecution of a crime.

In order for USCIS to determine if an injured worker is eligible for a U visa because he/she meets the following requirements in addition to the required certification:

1. is a victim of one of the enumerated crimes or similar activity, includes attempt, conspiracy, or solicitation to commit any of the enumerated crimes.
2. possesses information concerning the criminal activity.
3. was, is, or is likely to be helpful in the investigation or prosecution of the crimes against her.
4. has suffered substantial physical or mental abuse as a result of the crimes.

The enumerated crimes include the following:

• Abduction
• Abusive Sexual Contact
• Blackmail
• Domestic Violence
• Extortion
• False Imprisonment
• Female Genital Mutilation
• Felonious Assault
• Fraud in Foreign Labor Contractin
• Hostage
• Incest
• Involuntary Servitude
• Kidnapping
• Manslaughter
• Murder
• Obstruction of Justice
• Peonage
• Perjury
• Prostitution
• Rape
• Sexual Assault
• Sexual Exploitation
• Slave Trade
• Stalking
• Torture
• Trafficking
• Witness Tampering
• Unlawful Criminal Restraint
• Other Related Crimes*†

*Includes any similar activity where the elements of the crime are substantially similar.
†Also includes attempt, conspiracy, or solicitation to commit any of the above and other related crimes.

Not all WCJs are aware of this process, and may be reluctant to certify the request which is essential for the U-Visa application. Therefore, attorneys should carefully review the procedure for doing so:

1. File a DOR for a status conference
2. Alert opposing counsel as to the reason for the conference
3. Present a mini brief at the conference explaining to the WCJ why they have authority to sign off on this certification.
4. Prepare the certification form for the WCJ to sign.

COMMON WORKPLACE CRIMINAL ACTIVITIES:

The following are examples of common workplace criminal activities by the employer, coworkers, clients, customers or agents of the employer which can make the injured worker eligible for U Visa certification:

• Injured worker filed a claim and/or testified about abuse or sexual assault in a court case, including WCAB and employment cases. Potential questions posed to the applicant: Did your employer post posters, drawings, pictures of a sexual nature? Did your employer make comments about clothing/appearance or make sexual jokes or comments? Look at you in a sexual manner? Did your employer ask for sexual favors, ask you to have sex with him/her, spread rumors? Did your employer touch you inappropriately? Force you to have unwanted sex?
• A housekeeper who has been physically or mentally abused by her employer and/or deprived of her liberty by having her ID or Passport confiscated.
• Did employer or coworker threaten violence? Did employer or coworker threaten to report applicant’s immigration status?
• Obstruction of Justice: Attempts to influence, obstruct, or impede ANY pending proceeding through use of threats or force; Destruction, alteration, or falsification of records, including wage/hour records, birth certificates.
• Witness Tampering: Did an employer ever intimidate or threaten applicant to delay or prevent testimony in any “official proceeding”; Alter, destroy, conceal records? Hinder, delay, or prevent communication to authorities; Threaten to damage property or cause bodily harm to delay or prevent witness participation?

LEGAL AUTHORITY & RESOURCES

1. The application process and appropriate forms can be found USCIS website at www.uscis.gov.
2. Judicial Council of California: Expert Guidance on Responding to U Visa and T Visa Certification Requests http://www.courts.ca.gov/documents/BTB24-PreCon1E-01.pdf
3. New California Law on Certifications PC 679.10 U Visa Certifications – Effective January 1, 2016 https://www.ilrc.org/new-california-law-ensures-all-immigrant-crime-victims-california-can-access-u-visa

If you have further questions or inquiries about important immigration and workers’ compensation crossover issues, feel free to contact the author Nikki Mehrpoo Jacobson via email at N.Jacobson@rkmlaw.net

© 2018 by Nikki Mehrpoo Jacobson. All rights reserved